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Friday, November 30, 2012

Just what the Doctor Ordered . . . Well, not really

This case turns partially on the definition of “legally liable”
and—though no one is going to say it out loud—partially on common sense.

Here’s the
scenario: Physician Assistant (or “PA” for short) overprescribes and perhaps
diverts certain controlled substances.
Doctor is responsible for supervising PA. Doctor, acting on a tip, concludes that PA is
improperly prescribing drugs. Doctor
files a complaint against PA with the Board of Medical Practice. Question: Is Doctor guilty of unprofessional
conduct based on the PA’s acts?

This is
where common sense comes into play—Doctor discovered and reported the PA’s
misconduct. Ergo, why should Doctor be
held liable for the PA’s professional misconduct? But as anyone with more than a fleeting acquaintance
with the law knows that common-sense lies in the hands of the narrator and is
rarely the end of the discussion. Still,
in the end, what seems like the initial common sense response prevails.

So, as
noted above, Doctor filed a complaint with the Board of Medical Practice and
the Board, in turn, investigated the PA.
The PA admitted to improper prescribing, stipulated to unprofessional
conduct and professional negligence, and was disciplined.

Later,
the State filed a specification of charges against the Doctor. The State alleged, among other things, that under
26 V.S.A. § 1739, Doctor was “legally liable” for the PA’s acts, and thus,
guilty of unprofessional conduct. Doctor
moved to dismiss on that point, arguing that while the statute does provide a
basis for a supervising physician to be held liable for the tortious acts of
his PA, it does not contemplate vicarious liability in professional
disciplinary proceedings. The Board
denied the motion.

After a
hearing, a three-person committee issued a proposed decision and order. Basically, the committee found that because
26 V.S.A. § 1739 creates a principal–agent relationship between doctors and
PAs, Doctor was guilty of unprofessional conduct as soon as the PA’s guilt was
established. The committee did not
recommend any discipline, however. And
it recommended dismissing the remainder of the charges (five in all). Both parties objected to the committee’s
proposed decision.

So, the
Board held a hearing to determine whether to accept, modify, or reject the
committee’s proposed decision and order. The Board rejected the committee’s
recommendation regarding unprofessional conduct, reasoning that Doctor didn’t
engage in the conduct, wasn’t aware of it, and couldn’t reasonably be expected
to be aware of it. Accordingly, the
Board concluded that Doctor needn’t be held vicariously liable for the PA’s
unprofessional conduct. The Board
adopted the rest of the committee’s findings and conclusions and dismissed all
of the charges.

And
that’s how we end up at the SCOV. There’s
a relatively-lengthy discussion of the applicable standard of review regarding
the Board’s decision. Here it is in one
sentence: Board decisions get deference—even heightened deference—on decisions
within its scope of expertise; decisions outside the scope of its expertise get
nada.

This is
all a big setup to break out Black’s Law Dictionary and look up the phrase
“legally liable.” After doing so, the
SCOV concludes that the “phrase ‘legally liable’ does not encompass
responsibility for violations of professional obligations.” The SCOV also notes that the Legislature
makes a semantic distinction between “liability” in the civil-action context
and “guilt” in the professional responsibility context. And so, the SCOV concludes that the Doctor is
not “legally liable” for the PA’s unprofessional conduct in the professional
responsibility setting.

Though
the State also argues that the statute provides an agency-basis-liability
theory, the SCOV concludes that this is an imagination stretcher, reasoning
that this basis applies in tort and contract situations, not professional
responsibility proceedings.

The State
makes an apparent
doctors-and-PAs-are-just-like-real-estate-brokers-and-salespeople-in-the-professional-responsibility-context
argument (with a case to back it up), but the SCOV rejects it out of hand. First, the SCOV reasons, the
real-estate-licensing and medical-licensing regimes are, like, way different
and stuff. Second, there’s a lot more
stuff in the medical-licensing structure than there was in the real-estate-licensing
structure at the time of the real-estate-licensing-professional-responsibility
case. Third, the SCOV wasn’t talking
about “legally liable” in that case; it was talking about vicarious liability
for salespeople’s acts. If that’s not
enough, we’re talking about statutory interpretation in this case. So, no help for the State there.

Finally,
the SCOV takes a dig at the Board, noting that while the SCOV believes the
result was correct, the Board doesn’t even have authority to discipline the
Doctor based solely on the PA’s bad acts.

To wrap
it up: (1) no vicarious liability under the “legally liable” statute in the
professional-responsibility context; and (2) no authority to discipline Doctor
based solely on PA’s acts, when Doctor’s conduct meets or exceeds applicable
standard of care.